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subject-matter, it must yield to the latter. While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget that it is an instrument of government we are to construe, and that must be the truest exposition which best harmonizes with its design, its objects, and its general structure."

45

SAME-INTENT TO BE SOUGHT.

48. It is a cardinal rule in the interpretation of constitutions that the instrument must be so construed as to give effect to the intention of the people, who adopted it.

49. This intention is to be sought in the constitution itself, and the apparent meaning of the words employed is to be taken as expressing it, except in cases where that assumption would lead to absurdity, ambiguity, or contradiction.

Where the meaning shown on the face of the words is definite and intelligible, the courts are not at liberty to look for another meaning, even though it would seem more probable or natural, but they must assume that the constitution means just what it says. "Whether we are considering an agreement between parties, a statute, or a constitution, with a view to its interpretation, the thing we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instru ment is the one which alone we are at liberty to say was intended to be conveyed. In such a case, there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have the right to add to, or take away from, that meaning." 46 But if the words of the constitution,

45 1 Story, Const. § 455.

46 Newell v. People, 7 N. Y. 9, 97; City of Beardstown v. City of Virginia, 76

thus taken, are devoid of meaning, or lead to an absurd conclusion, or are contradictory of other parts of the constitution, then it cannot be presumed that their prima facie import expresses the real intention. And in that case, the courts are to employ the process of construction to arrive at the real intention, by taking the words in such a sense as will give them a definite and sensible meaning, or reconcile them with the rest of the instrument. And this sense is to be determined by comparing the particular clause with other parts of the constitution, by considering the various meanings, vernacular or technical, which the words are capable of bearing, and by studying the facts of contemporary history and the purpose sought to be accomplished, and the benefit to be secured, or the evil to be remedied, by the provision in question.47

Subsidiary Rules of Constitutional Construction.48

1. The construction of a constitutional provision is to be uniform.49 2. In case of ambiguity, the whole constitution is to be examined, in order to determine the meaning of any part, and the construction is to be such as to give effect to the entire instrument, and not to raise any conflict between its parts which can be avoided.50

3. A constitution should be construed with reference to, but not overruled by, the doctrines of the common law and the legislation previously existing in the state.51

4. A constitutional provision should not be construed with a retrospective operation, unless that is the unmistakable intention of the words used or the obvious design of the authors.52

III. 34, 40; City of Springfield v. Edwards, 84 Ill. 626; People v. May, 9 Colo. 80, 10 Pac. 641; 1 Story, Const. § 401; Hills v. City of Chicago, 60 Ill. 86.

47 People v. Potter, 47 N. Y. 375; Taylor v. Taylor, 10 Minn. 107 (Gil. 81).

48 These rules are here summarized from Black, Interp. Laws, 13-34, where the reader will find a full discussion of them.

49 "The policy of one age may ill suit the wishes or the policy of another. The constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, to-day and forever." 1 Story, Const. § 427. 50 Manly v. State, 7 Md. 135.

51 Costigin v. Bond, 65 Md. 122, 3 Atl. 285.

52 See Town of Cherry Creek v. Becker, 123 N. Y. 161, 25 N. E. 369; Farns

5. The provisions of a constitution are almost invariably mandatory; it is only in extremely plain cases, or under the pressure of necessity that they can be construed as merely directory.53

6. Whatever is necessary to render effective any provision of a constitution, whether the same be a prohibition, or a restriction, or the grant of a power, must be deemed implied and intended in the provision itself."4

7. Where the constitution grants a power in general terms, the grant includes all such particular and auxiliary powers as may be necessary to make it effectual. Where the means for the exercise of a granted power are specified, all other means are understood to be excluded. Where the means are not specified, any means may be resorted to which are fairly and properly adapted to accomplish the object of the grant of power, if they do not unnecessarily interfere with existing interests or vested rights.55

8. The words employed in a constitution are to be taken in their natural and popular sense, unless they are technical legal terms, in which case they are to be taken in their technical signification.56

9. The preamble to a constitution and the titles of its several articles or sections may furnish some evidence of its meaning and intention, but arguments drawn therefrom are entitled to very little weight.57

10. It is not permissible to disobey, or to construe into nothingness, a provision of the constitution merely because it may appear to work injustice, or to lead to harsh or obnoxious consequences or invidious and unmerited discriminations, and still less weight should be attached to the argument from mere inconvenience.58

worth v. Railroad Co., 83 Me. 440, 22 Atl. 373. But compare In re Gibson, 21 N. Y. 9.

53 Varney v. Justice, 86 Ky. 596, 6 S. W. 457; People v. Lawrence, 36 Barb. 177.

54 Endl. Interp. St. § 535; 1 Story, Const. § 430.

55 Field v. People, 2 Scam. (Ill.) 79.

56 Greencastle Tp. v. Black, 5 Ind. 557; The Huntress, Daveis, 82, Fed. Cas. No. 6,914; People v. Fancher, 50 N. Y. 288.

57 Houseman v. Com., 100 Pa. St. 222.

58 Greencastle Tp. v. Black, 5 Ind. 557; Weill v. Kenfield, 54 Cal. 111; County

of Wayne v. City of Detroit, 17 Mich. 390; Oakley v. Aspinwall, 3 N. Y. 547, 568; People v. May, 9 Colo. 80, 10 Pac. 641.

11. If an ambiguity exists which cannot be cleared up by a consideration of the constitution itself, then, in order to determine its meaning and purpose, resort may be had to extraneous facts, such as the prior state of the law, the evil to be remedied, the circumstances of contemporary history, or the discussions of the constitutional convention.59

12. The contemporary construction of the constitution, especially if universally adopted, and also its practical construction, especially if acquiesced in for a long period of time, are valuable aids in determining its meaning and intention in cases of doubt; but these aids must be resorted to with caution and reserve, and they can never be allowed to abrogate, contradict, enlarge, or restrict the plain and obvious meaning of the text.6°

13. Where a clause or provision in a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another constitution, it will be presumed that the construction thereof was likewise adopted."1

14. The office of a schedule to a constitution is temporary only, and its provisions will be understood as merely transitory, wherever that construction is logically possible. The schedule should not be allowed to abrogate or contradict the provisions of the permanent part of the constitution.62

15. The principle of stare decisis applies with special force to the construction of constitutions, and an interpretation once deliberately put upon the provisions of such an instrument should not be departed from without grave reasons.

63

59 Mayor, etc., of Baltimore v. State, 15 Md. 376; Cronise v. Cronise, 54 Pa. St. 255; Com. v. Balph, 111 Pa. St. 365, 3 Atl. 220; People v. May, 9 Colo. 80, 10 Pac. 641.

60 People v. May, 9 Colo. 80, 10 Pac. 641; 1 Story, Const. §§ 406, 407.

61 Ex parte Roundtree, 51 Ala. 42; Jenkins v. Ewin, 8 Heisk. (Tenn.) 456. 62 Com. v. Clark, 7 Watts & S. (Pa.) 127; State v. Taylor, 15 Ohio St. 137. es Maddox v. Graham, 2 Metc. (Ky.) 56.

CHAPTER V.

THE THREE DEPARTMENTS OF GOVERNMENT.

50. Classification of Governmental Powers.

51. Separation of Governmental Powers.

52-53. The Separation not Absolute.

54. Limitations on the Three Departments of Government.
55. Political Questions.

56. Advisory Opinions by the Courts.

CLASSIFICATION OF GOVERNMENTAL POWERS.

50. The powers of government are divided into three classes, to wit:

(a) Legislative.
(b) Executive.
(c) Judicial.

Constitutional government is a government by law. The office of the state is to establish and maintain laws. But law in its application to the individual presents itself in three aspects. It is a thing to be ordained, a thing to be administered, and a thing to be interpreted and applied. There is, therefore, a natural threefold division of the powers and functions of the state in the idea of government by law. First, there is the power to ordain or prescribe the laws, which includes, incidentally, the power to change, amend, or repeal any existing laws. This is called the "legislative" power. Second, there is the power to administer the laws, which means carrying them into practical operation and enforcing their due observance. This is denominated "executive" power. Third, there is the power to apply the laws to contests or disputes concerning legally recog nized rights or duties between the state and private persons, or between individual litigants, in cases properly brought before the judicial tribunals, which includes the power to ascertain what are the valid and binding laws of the state, and to interpret and construe them, and to render authoritative judgments. This is called "judicial" power.

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